The denial to it of

proper to execute And I think, with

and finally dissolve from the want of cohesion. powers plainly conferred, or clearly necessary and the conferred powers, may produce this effect. great deference to the gentlemen on the other side, this is the danger to which their principles directly tend. The other danger, that of consolidation, is, by the assumption of powers not granted nor incident to granted powers, or the assumption of powers which have been withheld or expressly prohibited. This was the danger of the period of 1798-9. For instance, that in direct contradiction to a prohibitory clause of the constitution, a sedition act was passed; and an alien law was also passed, in equal violation of the spirit, if not of the express provisions of the constitution. It was by such measures that the Federal party, (if parties might be named,) throwing off the veil, furnished to their adversaries the most effectual ground of opposition. If they had not passed those acts, I think it highly probable that the current of power would have continued to flow in the same channel; and the change of parties in 1801, so auspicious to the best interests of the country, as I believe, would never have occurred.

I beg the committee-I entreat the true friends of the confederated union of these States, to examine this doctrine of State rights, and see to what abusive, if not dangerous consequences, it may lead, to what extent it has been carried, and how it has varied by the same State at different times. In alluding to the State of Massachusetts, I assure the gentlemen from that State, and particularly the honorable chairman of the committee to whom the claim of Massachusetts has been referred, that I have no intention to create any prejudice against that claim. I hope that when the subject is taken up, it will be candidly and dispassionately considered, and that a decision will be made on it consistent with the rights of the Union, and of the State of Massachusetts. The high character, amiable disposition, and urbanity of the gentleman to whom I have alluded, (Mr. Mason of Massachusetts,) will, if I had been' otherwise inclined, prevent me from endeavoring to make impressions unfavorable to the claim whose justice that gentleman stands pledged to manifest. But in the period of 1798-9, what was the doctrine promulgated by Massachusetts ? It was that the States in their sovereign capacity had no right to examine into the constitutionality or expediency of the measures of the general government.

[Mr. Clay here quoted several passages from the answer of the State of Massa chusetts to the Virginia and Kentucky resolutions, concerning the Alien and Sedition laws, to prove his position.]

We see here an express disclaimer on the part of Massachusetts of any right to decide on the constitutionality, or expediency of the acts of the general government. But what was the doctrine which the same State, in 1813, thought proper to proclaim to the world, and that, too, when the Union was menaced on all sides? She not only claimed, but exercised the right which in 1799 she had so solemnly disavowed. She claimed the right to judge of the propriety of the call made by the general government for her militia, and she refused the militia called for. There is so much plausibility in the reasoning employed by that State in support of her modern doctrine of State rights, that, were it not for the unpopularity of the stand she took in the late war, or had it been in other times, and under other circumstances, she would very probably have escaped a great portion of that odium which has so justly fallen to her lot. The constitution gives to Congress power to provide for calling out the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions; and in no other cases. The militia was called out by the general government, during the late war, to repel invasion. Massachusetts said, as you have no right to the militia, but in certain contingencies, she was competent to decide whether those contingencies had or had not occurred. And, having examined the facts, what then? She said all was peace and quietness in Massachusetts. No non-execution of the laws-no insurrection at home-no invasion from abroad, nor any immediate danger of invasion. And, in truth, I believe there was no actual invasion for nearly two years after the requisition. Under these circumstances, were it not for the supposed motive of her conduct, would not the case which Massachusetts made out have looked extremely plausible? I hope it is not necessary for me to say, that it is very far from my intention to convey any thing like approbation of the conduct of Massachusetts. No! My doctrine is that the States, as States, have no right to oppose the execution of the powers which the general government asserts. Any State has undoubtedly the right to express its opinion, in the form of resolution or otherwise, and to proceed, by constitutional means, to redress any real or imaginary grievance; but it has no right to withhold its military aid, when called upon by the high authorities of the general government, much less to obstruct the execution of a law regularly passed. To

suppose the existence of such an alarming right, is to suppose, if not disunion itself, such a state of disorder and confusion, as must inevitably lead to it.

Greatly as I venerate the State which gave me birth, and much as I respect the judges of its Supreme Court, several of whom are my personal friends, I am obliged to think that some of the doctrines which that State has recently held concerning State rights, are fraught with much danger. If those doctrines had been asserted during the late war, a large share of the public disapprobation which has been given to Massachusetts would have fallen to Virginia. What are these doctrines? The courts of Virginia assert that they have a right to determine on the constitutionality of any law or treaty of the United States, and to expound them according to their own views, even if they should vary from the decision of the Supreme Court of the United States. They assert more-that from their decision there can be no appeal to the Supreme Court of the United States; and that there exists in Congress no power to frame a law, obliging the court of the State, in the last resort, to submit its decision to the supervision of the Supreme Court of the United States; or, if I do not misunderstand the doctrine, to withdraw from the State tribunal controversies involving the laws of the United States, and to place them before the federal judiciary. I am a friend, a true friend, to State rights; but not in all cases as they are asserted. The States have their appointed orbit; so has the Union; and each should be confined within its fair, legitimate, and constitutional sphere. We should equally avoid that subtle process of argument which dissipates into air the powers of this government, and that spirit of encroachment which would snatch from the State powers not delegated to the general government. We shall thus escape both the dangers I have noticed that of relapsing into the alarming weakness of the confederation, which is described as a mere rope of sand; and also that other, perhaps not the greatest danger, consolidation. No man deprecates more than I do, the idea of consolidation; yet between separation and consolidation, painful as would be the alternative, I would greatly prefer the latter.

I will now proceed to endeavor to discover the real difference, in the interpretation of the constitution, between the gentlemen on the other side and myself. It is agreed that there is no power in the general government but that which is expressly granted, or which is

impliable from an express grant. The difference then must be in the application of this rule. The gentleman from Virginia, who has favored the house with so able an argument on the subject, has conceded though somewhat reluctantly, the existence of incidental powers, but he contended that they must have a direct and necessary relation to some specified power. Granted. But who is to judge of this relation? And what rule can you prescribe different from that which the constitution has required, that it should be necessary and proper? Whatever may be the rule, in whatever language you may choose to express it, there must be a certain degree of discretion left to the agent who is to apply it. But gentlemen are alarmed at this discretion; that law of tyrants, on which they contend there is no limitation. It should be observed, in the first place, that the gentlemen are brought, by the very course of reasoning which they themselves employ, by all the rules which they would lay down for the constitution, to cases where discretion must exist. But is there no limitation, no security against the abuse of it? Yes, there is such security in the fact of our being members of the same society, equally affected ourselves by the laws we promulgate. There is the further security in the oath which is taken to support the constitution, and which will tend to restrain Congress from deriving powers which are not proper and necessary. There is the yet further security, that, at the end of every two years, the members must be amenable to the people for the manner in which their trusts have been performed. And there remains also that further, though awful security, the last resort of society, which I contend belongs alike to the people and to the States in their sovereign capacity, to be exercised in extreme cases, and when oppression becomes intolerable, the right of resistance. Take the gentleman's own doctrine, (Mr. Barbour,) the most restricted which has been asserted, and what other securities have we against the abuse of power, than those which I have enumerated? Say that there must be an absolute necessity to justify the exercise of an implied power, who is to define that absolute necessity, and then to apply it? Who is to be the judge? Where is the security against transcending that limit? The rule the gentleman contends for has no greater security than that insisted upon by us. It equally leads to the same discretion, a sound discretion, exercised under all the responsibility of a solemn oath, of a regard to our fair fame, of a knowledge that we are ourselves the subjects of those laws which we pass, and lastly, of the right of resisting insupportable tyranny

And, by way of illustration, if the sedition act had not been condemned by the indignant voice of the community, the right of resistance would have accrued. If Congress assumed the power to control the right of speech, and to assail, by penal statutes, the greatest of all the bulwarks of liberty, the freedom of the press, and there were no other means to arrest their progress, but that to which I have referred, lamentable as would be the appeal, such a monstrous abuse of power, I contend, would authorize a recurrence to that right.

If, then, the gentlemen on the other side and myself differ so little in our general principles, as I think I have shown, I will proceed, for a few moments, to look at the constitution a little more in detail. I have contended that the power to construct post-roads is expressly granted in the power to establish post-roads. If it be, there is an end of the controversy; but if not, the next inquiry is, whether that power may be fairly deduced, by implication, from any of the special grants of power. To show that the power is expressly granted, I might safely appeal to the arguments already used, to prove that the words establish, in this case, can mean only one thing-the right of making. Several gentlemen have contended that the word has a different sense ; and one has resorted to the preamble of the constitution to show that the phrase "to establish justice," there used, does not convey the power of creation. If the word "establish" is there to be taken in the sense which gentlemen claim for it, that of adoption or designation, Congress could have a choice only of systems of justice pre-existing. Will any gentleman contend that we are obliged to take the Justinian code, the Napoleon code, the code of civil, or the code of common or cannon law? Establishment means in the preamble, as in other cases, construction, formation, creation. Let me ask, in all cases of crime, which are merely malum prohibitum, if you do not resort to construction, to creating, when you make the offence? By your laws denouncing certain acts as criminal offences, laws which the good of society requires you to pass, and to adapt to our peculiar condition, you do construct and create a system of rules, to be administered by the judiciary. But gentlemen say that the word cannot mean make; that you would not say, for example, to establish a ship, to establish a chair. In the application of this, as of all other terms, you must be guided by the nature of the subject; and if it cannot properly be used in all cases, it does not follow that